TITLE 24

Professions and Occupations

CHAPTER 53. MASSAGE AND BODYWORK

Subchapter II. License

§ 5307 License; certification required.

(a) No person shall engage in the practice of massage and bodywork therapy or hold himself or herself out to the public in this State as being qualified to practice massage and bodywork therapy; or use in connection with that person's name, or otherwise assume or use, any title or description conveying or tending to convey the impression that the person is qualified to practice massage and bodywork therapy, unless such person has been duly licensed or certified under this chapter. Massage and bodywork therapists licensed under this chapter may practice massage and/or bodywork therapy on referral or prescription from a licensed medical or osteopathic physician or chiropractor as deemed appropriate by the referring physician or chiropractor. Massage technicians certified under this chapter are prohibited from practicing on referral or prescription from a licensed medical or osteopathic physician or chiropractor and from treating medically diagnosed conditions.

(b) Whenever a license or certificate to practice massage and bodywork in this State has expired or been suspended or revoked, it shall be unlawful for the person to practice massage and bodywork in this State.

(c) No person shall act as a massage technician, or hold himself or herself out as a massage technician, unless such person has been duly certified by the Board under this chapter. Massage technicians shall practice massage and/or bodywork on other than medically diagnosed conditions.

(d) This chapter shall not apply to:

(1) Actions by any person, who is certified or licensed in this State by any other law, and who is engaged in and acting within the scope of the profession or occupation for which that person is certified or licensed;

(2) Actions by any person engaged in an occupation which does not require a certificate or certification, including, but not limited to, physical education teachers, athletic coaches, health or recreation directors, instructors at health clubs or spas, martial arts, water safety and dance instructors, or coaches, who is acting within the scope of activity for which such person is trained; and

(3) Any student of massage who is practicing within the scope of his or her course of study.

(a) An applicant who is applying for licensure as a massage and bodywork therapist under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person:

(1) Is at least 18 years of age;

(2) Has completed 500 hours of supervised in-class study as a student in a school which trains massage or bodywork therapists, or as a student in an approved program of massage or bodywork therapy; the school or program of training must include a curriculum of no less than:

a. 100 hours of anatomy and physiology;

b. 300 hours of technique and theory of massage or bodywork therapy;

c. 75 hours of elective courses in the field of massage therapy;

d. 25 hours of ethics, law and contraindications;

(3) Has achieved the passing score on a written, standardized, nationally-prepared and administered examination in massage or bodywork therapy; the passing score shall be as established by the testing agency. If the testing agency has not established a passing score, the Board in conjunction with the Division shall establish the passing score;

(4) Has passed a state-certified examination in cardiopulmonary resuscitation (CPR) training; and possesses current CPR certification. An exception from current CPR certification shall be allowed for persons who have lower limb amputee status;

(5) Has not engaged in any of the acts or offenses that would be grounds for disciplinary action under this chapter;

(6) Has no disciplinary proceedings or unresolved complaints pending against that person in any jurisdiction where the applicant has previously been or currently is licensed to practice massage and/or bodywork therapy;

(7) Has not been the recipient of any administrative penalties regarding that person's practice of massage and bodywork therapy, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations and/or has not entered into any "consent agreements" which contain conditions placed by a Board on that person's professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure;

(8) Shall not have any impairment related to drugs or alcohol or a finding of mental incompetence by a physician that would limit the applicant's ability to undertake that applicant's practice in a manner consistent with the safety of the public;

(9) Has not been convicted of a crime that is substantially related to the practice of massage and bodywork. However, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(9), if it finds all of the following:

a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service.

b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service.

c. The applicant is capable of practicing massage and bodyworks in a competent and professional manner.

d. The granting of the waiver will not endanger the public health, safety or welfare;

(10) Has not been convicted of a felony sexual offense; and

(11) Has submitted, at the applicant's expense, fingerprints and other necessary information in order to obtain the following:

a. A report of the applicant's entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Central Repository contains no such information relating to that person.

b. A report of the applicant's entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be the intermediary for purposes of this section and the Board of Massage and Bodywork shall be the screening point for the receipt of said federal criminal history records.

c. An applicant may not be licensed to practice as a massage therapist until the applicant's criminal history reports have been produced. An applicant whose record shows a prior criminal conviction may not be licensed by the Board unless a waiver is granted pursuant to paragraph (a)(9) of this section.

(b) Where the Board has found to its satisfaction that an applicant has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.

(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for that applicant than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.

(d) The Board shall grant a license to an applicant, who was previously licensed as a massage therapist in this State, and who has let that applicant's license lapse due to a failure to timely renew said license, subject to the applicant meeting the requirements of subsection (a) of this section, and the continuing education requirements as provided for in the Board's rules and regulations.

(e) Foreign-trained applicants must provide evidence of training and supervision essentially comparable to that cited in paragraph (a)(2) of this section.

(f) All individuals licensed to practice as massage therapists in this State shall be required to be fingerprinted by the State Bureau of Identification, at the licensee's expense, for the purposes of performing subsequent criminal background checks. Licensees shall submit by January 1, 2014, at the applicant's expense, fingerprints and other necessary information in order to obtain a criminal background check.

§ 5309 Qualifications of applicants for certification as massage technicians.

(a) An applicant who is applying for certification as a massage technician under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person meets the requirements of § 5308(a)(5)-(11) and (e) of this title and:

(1) Is at least 18 years of age;

(2) Has completed, as a minimum, a 300-hour course of supervised in-class study of massage that includes a curriculum of no less than:

a. Sixty hours of anatomy and physiology;

b. One hundred-forty hours of theory and technique;

c. Seventy-five hours of elective courses in the field of massage therapy;

d. Twenty-five hours of ethics, law and contraindications

(3) Has passed a state-certified examination in cardio-pulmonary resuscitation (CPR) training; and possesses current CPR certification. An exception from current CPR certification shall be allowed for persons who have lower limb amputee status.

(b) Notwithstanding subsection (a) of this section, an applicant may apply for a temporary massage technician certification under this section after completion of a 200-hour course of supervised in-class study of massage that includes a curriculum of no less than:

(1) Fifty hours of anatomy and physiology;

(2) One hundred and ten hours of theory and technique;

(3) Twenty-five hours of ethics, law, and contraindications; and

(4) Fifteen hours of elective courses.

A temporary massage technician certification, which is subject to all the other provisions and requirements of this chapter, shall be valid for a period of no more than 1 year and may not be renewed or reissued, and shall not be eligible for inactive status.

(c) Where the Board has found to its satisfaction that an applicant has been intentionally fraudulent, or that false information intentionally has been supplied, it shall report its findings to the Attorney General for further action.

(d) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for that applicant than for other applicants or licensees; or has in some way contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.

(e) All individuals licensed to practice as massage technicians in this State shall be required to be fingerprinted by the State Bureau of Identification, at the licensee's expense, for the purposes of performing subsequent criminal background checks. Licensees shall submit by January 1, 2014, at the applicant's expense, fingerprints and other necessary information in order to obtain a criminal background check.

Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who shall present proof of current licensure, in good standing, in another state, the District of Columbia or territory of the United States, and who, in addition:

(1) Meets the criteria for licensure in good standing as defined in § 5308(a)(5)-(10) of this title for all currently and previously held licenses and has complied with § 5308(a)(11) and (e) of this title;

(2) Has achieved the passing score on a written, standardized nationally-prepared and administered examination in massage or bodywork therapy; the passing score shall be as established by the testing agency. If the testing agency has not established a passing score, the Board in conjunction with the Division shall establish the passing score;

(3) Has practiced massage and bodywork continually for 2 years immediately prior to making application;

The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division of Professional Regulation in its service on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year, the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the coming year.

(a) The Board shall issue a license or certificate to each applicant who meets the requirements of this chapter for licensure as a massage and bodywork therapist or certification as a massage technician and who pays the fee established under § 5311 of this title.

(b) Each license or certificate shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation, and upon payment of the appropriate fee and submission of a renewal form provided by the Division of Professional Regulation, and proof that the licensee or certificant has met the continuing education requirements established by the Board.

(c) The Board, in its rules and regulations, shall determine the period of time within which a licensed massage and bodywork therapist or certified massage technician may still renew such license or certificate, notwithstanding the fact that such licensee or certificant has failed to renew on or before the renewal date.

(d) Any licensee or certificate holder, upon written request, may be placed on inactive status. Any person who desires to reactivate that person's license or certificate shall complete a Board approved application form, submit a reactivation fee set by the Division, submit proof of current CPR certification, and submit evidence of compliance with continuing education requirements in accordance with the Board's rules and regulations.

(a) A practitioner licensed or certified under this chapter shall be subject to disciplinary actions set forth in § 5315 of this title, if, after a hearing, the Board finds that the massage and bodywork therapist or massage technician:

(1) Has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a massage and bodywork therapist or certification as a massage technician; has impersonated another person holding a license or certification, or allowed another person to use the massage or bodywork license or massage technician certification, or aided or abetted a person not licensed as a massage or bodywork therapist or certified as a massage technician to represent that person as a massage or bodywork therapist or massage technician;

(2) Has been convicted of a crime that is substantially related to the practice of massage and bodywork, as set forth in the Board's rules and regulations; a copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence thereof;

(3) Has an impairment related to drugs or alcohol or a finding of mental incompetence by a physician that would limit the practitioner's ability to undertake his or her practice in a manner consistent with the safety of the public;

(4) Has violated a lawful provision of this chapter, or any lawful regulation established thereunder;

(5) Has had that practitioner's license as a massage and bodywork therapist or that practitioner's certificate as massage technician suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record; and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute 1 or more of the acts defined in this chapter. Every person licensed as a massage and bodywork therapist or certified as a massage technician in this State shall be deemed to have given consent to the release of this information by the Board of Massage and Bodywork Therapy or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses;

(6) Has failed to notify the Board that the practitioner's license as a massage and bodywork therapist or certificate as massage technician in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof;

(7) Has engaged directly or indirectly in the division, transferring, assigning, rebating or refunding of fees received for professional services or who profits by means of a credit or other valuable consideration such as wages or an unearned commission, discount or gratuity with any person who referred a patient or with any relative or business associate of the referring person. Nothing in this paragraph shall be construed as prohibiting the members of any regularly and properly organized business entity recognized by the Delaware law and comprised of massage therapists from making any division of their total fees among themselves as they determine by contract necessary to defray their joint operating costs; or

(8) Has been guilty of unprofessional conduct, as adopted in the rules and regulations, and which shall include departure from or the failure to conform to the national code of professional ethics and standards of acceptable massage and bodywork practices.

(b) Where a practitioner fails to comply with the Board's request that the practitioner attend a hearing, the Board may petition the Superior Court to order such attendance, and the said Court or any judge assigned thereto shall have jurisdiction to issue such order.

(c) Subject to the provisions of this chapter and subchapter IV of Chapter 101 of Title 29, no license shall be disciplined, restricted, suspended or revoked by the Board, and no practitioner's right to practice shall be limited by the Board, until such practitioner has been given notice and an opportunity to be heard in accordance with the Administrative Procedures Act [Chapter 101 of Title 29].

A practitioner or member of the public desiring to file a complaint against a practitioner or licensee, or certificate holder regulated by the Board shall file a written complaint with the Division of Professional Regulation. All complaints shall be received and investigated by the Division in accordance with the procedures as specified in § 8735 of Title 29. The Division shall be responsible for issuing a final written report at the conclusion of the investigation.

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that any of the conditions or violations set forth in § 5313 of this title applies to a practitioner regulated by this chapter.

(1) Issue a letter of reprimand;

(2) Place a practitioner on probationary status, and require the practitioner to:

a. Report regularly to the Board upon the matters which are the basis of the probation;

b. Limit all practice and professional activities to those areas prescribed by the Board; and/or

c. Continue or renew the practitioner's professional education until the required degree of skill has been attained in those areas which are the basis of the probation;

(3) Suspend any practitioner's license or certification;

(4) Revoke a practitioner's license or certification;

(5) Impose a monetary penalty not to exceed $500 for each violation.

(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.

(c) In the event of a formal or informal complaint concerning the activity of a licensee or certificant that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person's license or certificate, pending a hearing, upon the written order of the Secretary of State or the Secretary's designee, with the concurrence of the Board chair or the Board chair's designee. An order temporarily suspending a license or certificate may not be issued unless the person or the person's attorney received at least 24 hours' written or oral notice before the temporary suspension so that the person or the person's attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. An order of temporary suspension pending a hearing may remain in effect for no longer than 60 days from the date of the issuance of the order unless the temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license or certificate has been temporarily suspended pursuant to this section may request an expedited hearing. The Board shall schedule the hearing on an expedited basis, provided that the Board receives the request within 5 calendar days from the date on which the person received notification of the decision to temporarily suspend the person's license or certificate.

(d) Where a licensee or certificant has been suspended due to a disability of the licensee or certificant, the Board, at a Board meeting, may reinstate such licensee or certificant if the Board is satisfied that the licensee or certificant is able to practice with reasonable skill and safety.

(e) As a condition of reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter.

(f) The Board shall permanently revoke the license or certificate of a person licensed as a massage and bodywork therapist or certified as a massage technician who is convicted of a felony sexual offense.

(a) If a complaint is filed with the Board pursuant to § 8735 of Title 29, alleging violation of § 5313 of this title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29.

(b) All hearings shall be informal without use of rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. The Board's decision shall be mailed immediately to the practitioner.

(c) Where the practitioner is in disagreement with the action of the Board, the practitioner may appeal the Board's decision to the Superior Court within 30 days after the date of mailing of the decision. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with § 10144 of Title 29.

A person not currently licensed as a massage or bodywork therapist or certified as a massage technician under this chapter, when guilty of engaging in the practice of massage or bodywork therapy or of practicing as a massage technician, or using in connection with the practitioner's own name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that the practitioner is qualified to practice massage or bodywork therapy, or to act as a massage technician, such offender shall be guilty of a misdemeanor. Upon the first offense, the practitioner shall be fined not less than $100, nor more than $500 for each offense. For a second or subsequent conviction, the fine shall be not less than $500, nor no more than $1,000 for each offense. Superior Court shall have jurisdiction over all violations of this chapter.

(a) A parent or legal guardian shall be present when a person licensed or certified to practice massage and bodywork under this chapter provides services to a minor, regardless of the sex of the licensed or certified person and minor. The minor may decline the presence of a parent or legal guardian only with the written consent of the parent or legal guardian. The licensed or certified person shall confirm the identity of the parent or legal guardian, as provided in the Board's rules and regulations.

(b) When a minor is to receive services, the person licensed or certified to practice massage and bodywork under this chapter shall provide notice to the parent or legal guardian of the rights under subsection (a) of this section. The notice shall be provided in written form and shall be posted conspicuously in the location where services will be provided. The specific requirements for notice shall be set forth in the Board's rules and regulations.

(c) For the purposes of this section, "minor" is defined as a person less than 18 years of age.